Standards de prova no Processo Civil brasileiro

• Ano de defesa: 2020
• Autor(a) principal: Ponzoni, Christian
• Orientador(a): Jobim, Marco Félix
• Tipo de documento: Dissertação
• Tipo de acesso: Acesso aberto
• Idioma: por
• Instituição de defesa: Pontifícia Universidade Católica do Rio Grande do Sul
• Programa de Pós-Graduação: Programa de Pós-Graduação em Direito
• Departamento: Escola de Direito
• País: Brasil
• Palavras-chave em Português: Processo civil; Prova; Decisão judicial; Suficiência da prova; Modelos de constatação dos fatos; Standards de prova
• Palavras-chave em Inglês: Civil procedure; Evidence; Judgments; Sufficiency of the evidence; Standards of proof
• Área do conhecimento CNPq: CIENCIAS SOCIAIS APLICADAS::DIREITO
• Link de acesso: http://tede2.pucrs.br/tede2/handle/tede/9175

Standards of proof are the criteria for considering the veracity or falsity of an assertion about a fact sufficiently proven in a judicial procedure. The function of the standard is to distribute the risk of eventual erroneous decision between the parties. There are two types of errors: considering what is false proven, or not considering proven what is true. When raising the required level of probative sufficiency, there is less the error of considering true what is false, but more of the error of not considering true what is true. This choice is a political-moral decision, in which the seriousness of the error is taken into account, according to the importance of the right affected by the legal consequence and the degree of affectation. The judge necessarily has to evaluate the evidence supporting the narrative formulated by the parties in order to make a decision and the rationality of that decision depends on whether this is sufficient to support the allegations. The purpose of the research is to investigate the criteria that guide the sufficiency of the evidence, how they work and which can be used in Brazilian civil procedural law. The method of approaching the problem was the deductive one, starting from basic theories of jurists, philosophers and epistemologists, for the development of the explanatory reasoning of the investigated phenomenon. The procedure methods were historical and comparative. The method of interpretation was systematic. The types of research were exploratory, descriptive, explanatory, theoretical, qualitative and bibliographic. The degree of confirmation of a factual statement is a concept that suffers from degree vagueness. It is difficult to draw a line within a corroboration scale, since the standard is a gradual and not quantifiable concept. The standard of proof also suffers from combinatorial vagueness, and it is not possible to establish a closed list of assessment criteria that must be satisfied in order to reach the standard. Although the standard cannot overcome the limits of combinatorial vagueness and degree vagueness in a system of free evaluation of evidence, it is a necessary component for the rational decision-making about the facts. There is no way to make a decision without first giving credibility and weight to the evidence, nor without recognizing that the evidence is sufficient or not. The sufficiency of the evidence can only be verified in concrete and after the assessment of the evidence has ended. Standards can only indicate in advance that sufficiency should be higher or lower, but not how much. In this sense, it is much more guiding to consider only two criteria for civil proceedings, in which one tolerates a minimal difference of corroboration between the hypotheses, the preponderance of evidence, and the other, a robust difference, the clear and convincing evidence, without the standard being able to quantify this difference in advance. The general rule for civil proceedings should be the application of the standard of preponderance of evidence, as well as for precautionary measures, injunctive reliefs and self-evident claims. For hypotheses involving civil disputes in which interests that are not merely patrimonial are involved, the standard of clear and convincing evidence can be used, to be established preferably by the legislator, as it is a political-moral decision. In the meantime, it is up to the judge to set the applicable standard, giving prior knowledge to the plaintiff and the defendant in the procedure.